Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2023 (No. 5)

EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2023 (No. 5)

This Determination amends Defence Determination 2016/19, Conditions of service (the Principal Determination), made under section 58B of the Defence Act 1903 and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (AI Act).

Determinations made under section 58B of the Defence Act are disallowable legislative instruments subject to the Legislation Act 2003 (Legislation Act). These instruments are also subject to the interpretation principles in the AI Act.

This Determination amends the Principal Determination which provides benefits for members of the Australian Defence Force (ADF) and their families as part of the member’s conditions of service. The Principal Determination provides a range of benefits that recognise the unique nature of military service and the obligations and limitations that military service places on members and their families. Members undertake service in both the domestic and overseas environments, including on deployments. Specific benefits are provided for each environment.

Purpose

The purpose of this Determination is to make miscellaneous and consequential amendments to the Principal Determination following the implementation of the employment offer modernisation amending determinations. This Determination also provides the transitional and savings provisions relating to the categorisation and location frameworks which take effect from 1 July 2023.

Specifically, this Determination does the following:

• Corrects typographical errors and updates cross-references.
• Ensures the application of the new location framework to members on Reserve service in relation to travel.
• Updates remaining references to terms of the former categorisation framework to the new categorisation framework.
• Removes references to the CDF in places where the decision is made under other instruments.
• Removes duplicate definitions.

Operational details

Details of the operation of the Determination are provided at annex A.

Human rights compatibility

The statement of compatibility under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 for this Determination is at annex B.

Review options

Decisions that are made under the Principal Determination, as amended by this Determination, may be subject to inquiry under the ADF redress of grievance system provided under Part 7 of the Defence Regulation 2016. Also, a person may make a complaint to the Defence Force Ombudsman.

Consultation

Before this Determination was made, the following consultation was undertaken:

• Schedule 1: The rule maker was satisfied that the changes made by this Schedule are technical in nature and consultation was not required.
• Schedule 2: Navy, Army and Air Force.

The rule maker was satisfied that further consultation was not required.

Annex A

Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2023 (No. 5)

Operational details

Section 1 of this Determination sets out the manner in which this Determination may be cited.

Section 2 provides that this Determination commences on 1 July 2023.

Section 3 provides that this instrument has authority under section 58B of the Defence Act.

Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1—Miscellaneous amendments

Technical amendments made under this Schedule do not alter the underlying policies, or the benefits which are currently provided. The amendments are largely miscellaneous and consequential in nature and ensure that the Principal Determination operates as intended following the implementation of the new categorisations and location frameworks which take effect on 1 July 2023.

Items 1 to 5 amend section 1.3.1 of the Principal Determination which provides definitions that apply across the entire Principal Determination. Specifically, the items do the following:

• Item 1 inserts a definition of ‘breakdown of a relationship’.
• Items 2, 3 and 5 correct typographical errors.
• Item 4 omits and substitutes the definition of ‘operational area’.

Items 6, 18, 45 and 55 amend various sections in the Principal Determination to remove references to the CDF in relation to decisions made outside of the Principal Determination. These changes do not amend the underlying rule, but provide clarity that the decision is to be made under another instrument.

Items 7 and 8 amend the table at paragraph 1.3.7.e of the Principal Determination which defines ‘suitable accommodation’. The items add ‘Chapter 7’ before references to ‘Part 6’ or ‘Part 7’ to complete the cross‑reference.

Item 9 amends section 1.3.8 of the Principal Determination which defines ‘service location’. The section is amended to define ‘service location’ in relation to a member of the Reserves who is providing Reserve service.

Item 10 amends section 1.3.9 of the Principal Determination which defines ‘primary service location’. The section is amended to define ‘primary service location’ in relation to a member of the Reserves who is providing Reserve service.

Item 11 amends section 1.3.10 of the Principal Determination which defines ‘housing benefit location’. The item updates a cross‑reference in paragraph 1.3.10.c.

Items 12 to 14, 20 to 32, 35, 36, 49, 50, 56, 58, 60, 61 and 67 make various amendments across the Principal Determination to correct typographical errors, and updates cross‑references as a consequence of Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2023 (No. 1).

Item 15 amends section 1.3.39 of the Principal Determination which defines ‘de facto relationship’. The item amends subsection 1 to provide that a de facto relationship must be between two persons who are both at least 18 years old.

Item 16 renumbers section 1.3.51 of the Principal Determination as section 1.3.42.

Item 17 inserts section 1.3.43 after section 1.3.51 (renumbered as 1.3.42 by item 16 of this Determination). The new section provides definitions of ‘dependant’ and ‘member with dependants (unaccompanied)’ for the purpose of determinations made by the Defence Force Remuneration Tribunal. This section provides transitional definitions following changes made by Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2023 (No. 1).

Items 19 and 33 respectively amend section 3.2.13 and section 4.5.6 of the Principal Determination to replace the phrase ‘normal place of duty’ with ‘service location’. This is as a consequence of the changes made by Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2023 (No. 1).

Items 34 repeals section 5.8.2 of the Principal Determination which provides definitions that apply to Part 8 of Chapter 5. The repeal is consequential to the definitions being incorporated into section 1.3.1.

Item 37 amends section 6.1A.2 of the Principal Determination which provides definitions that apply to Chapter 6. The amendment omits the definition for ‘breakdown of a relationship’ as a consequence of the changes made by item 1 of this Determination.

Items 38 to 41 amend section 6.5.26 of the Principal Determination which provides a member with a removal benefit when they are posted for 6 months or more. Specifically, the items do the following:

• Item 38 repeals and substitutes paragraph 1.b to limit a removal to when the member’s next posting requires them to move outside of their housing benefit location.
• Item 39 adds to subsection 2 the location to which the member’s furniture and effects are to be removed.
• Items 40 and 41 reverse the order of the description of the costs that apply in the formula used for calculating a member’s contribution.

Items 42 to 44 make various amendments to section 6.5.46 and section 6.5.46A of the Principal Determination. The amendments apply the new categorisation framework to these rules.

Item 46 amends section 6.5.60 of the Principal Determination, which provides when a member ceases to be eligible for items to be removed from the Commonwealth removalist's store to the member's residence, to remove reference to the CDF. This amendment provides clarity to the reader that the power to extend the period for which a member is eligible for a removal is provided under 6.5.46.4 table item 3.

Items 47, 59 and 64 respectively amend the heading of Division 10 of Part 5 to Chapter 6, subsection 7.6.59.5 and the heading of Division 2 of Part 3 to Chapter 9 of the Principal Determination to reflect the changes in terminology, from ‘marriage or partnership’ to ‘relationship’, made by Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2023 (No. 1) and item 1 of this Determination.

Items 48, 65 and 68 amend various sections of the Principal Determination to promote the consistent use of ‘breakdown of a relationship’.

Items 51, 90 and 97 to 100 make various amendments across the Principal Determination to promote the consistent use of ‘partner’ removing references to ‘spouse’, which is incorporated into the definition of ‘partner’ in section 1.3.1 of the Principal Determination.

Items 52 to 54 amend section 7.2.12 of the Principal Determination which specifies when a member’s home is not a suitable own home. Specifically, the items do the following:

• Item 52 inserts a subsection number.
• Item 53 repeals and substitutes paragraph c to promote the consistent use of ‘relationship’ instead of ‘marriage’ and ‘partner’ instead of ‘spouse’.
• Item 54 adds a subsection 2 to define that a ‘partner’ includes a former partner.

Item 57 amends section 7.6.33 of the Principal Determination which provides the different factors that make a Service residence offered by Defence Housing Australia reasonable, which a member may take into account in accepting or rejecting a reasonable offer. The item repeals and substitutes subsection 4 to promote contemporary drafting styles.

Items 62, 63, 69 and 96 respectively amend paragraph 8.4.21.1A.b, section 8.9.1, paragraph 9.3.33H.2.b and subparagraph 17.4.6.1.b.iv of the Principal Determination to implement the new categorisation framework introduced by Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2023 (No. 1).

Item 66 repeals section 9.3.16 as a consequence of item 1 of this Determination and the transitional definitions following changes made by Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2023 (No. 1).

Items 70, 71, 84 and 95 respectively amend section 9.3.64, section 9.4.25, section 12.3.1 and section 17.1.2 of the Principal Determination which provide definitions that apply to their corresponding Divisions. The items remake the sections removing definitions that are incorporated into section 1.3.1 of the Principal Determination and updates the drafting style.

Item 72 amends section 9.5.8 of the Principal Determination which provides definitions that apply to Part 5 of Chapter 9. The item omits the definition of ‘normal place of duty’, which is no longer used in the Chapter.

Item 73, 74 and 77 to 82 make various amendments to the Principal Determination to implement the location framework introduced by Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2023 (No. 1) and removing references to ‘normal place of duty’. The amendments ensure that the location framework applies to members of the Reserves while they are providing Reserve service.

Items 75 and 76 amend section 9.5.37 of the Principal Determination which specifies when a member is not eligible for incidentals as a part of their travel benefits. Specifically, the items do the following:

• Item 75 repeals and substitutes paragraph c which references ‘field service’. This is replaced with ‘field allowance’, which is provided under DFRT Determination No. 13 of 2011.
• Item 76 repeals paragraph d which refers to ‘serving in the field as a member of a survey party’. This is repealed as it is no longer relevant as a consequence of the change made by item 75.

Item 83 amends paragraph 12.1.1.b of the Principal Determination which specifies who chapters 12 to 16 apply to. The item removes the notes in the section.

Items 85, 86 and 87 amend section 12.3.5 of the Principal Determination which provides the definition of dependant for overseas conditions of service. The items make various amendments to update terminology in response to the categorisation framework implemented by t Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2023 (No. 1).

Item 88 amends section 14.2.4 of the Principal Determination which provides rules relating to a certificate of fitness for a person travelling with a member on a long-term posting overseas. The item amend subsection 7 to update terminology and cross-references in response to the categorisation framework implemented by Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2023 (No. 1).

Items 89, 91 and 94 make various amendments to the Principal Determination replacing ‘new’ with ‘next’ to promote consistency in the drafting of the Determination.

Items 92 and 93 amend sections 15.2A.27 and 15.5.4 of the Principal Determination to update cross‑references as a consequence of changes made by Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2023 (No. 1).

Schedule 2—Transitional and savings provisions

Clause 1 provides definitions that apply to this schedule.

Clause 2 provides transitional and savings provisions in relation to people were guardians/housekeepers under paragraph 1.3.83.1.e of the Principal Determination before 1 July 2023. Paragraph 1.3.83.1.e of the Principal Determination as in force immediately before 1 July 2023 continues to apply to the person maintaining their recognition as a guardian or housekeeper until they are assessed under the Principal Determination as in force on or after 1 July 2023. The person may also cease to be a guardian/housekeeper if they cease to satisfy the rules under which they were first recognised or on 30 June 2024. 

While the person continues to be a guardian/housekeeper under the Principal Determination as in force immediately before 1 July 2023, they will be considered accompanied or unaccompanied resident family of a member depending on the member’s categorisation under the Principal Determination as in force from 1 July 2023.

Clause 3 provides transitional and savings provisions in relation to people were a CDF recognised dependant as a consequence of being in an interdependent relationship with a member under subsection 1.3.85.1 of the Principal Determination before 1 July 2023. Paragraph 1.3.85.1 of the Principal Determination as in force immediately before 1 July 2023 continues to apply to the person maintaining the interdependent relationship until they are assessed under the Principal Determination as in force on or after 1 July 2023. The person may also cease to be a CDF recognised dependant if they cease to satisfy the rules under which they were first recognised or on 30 June 2024. 

While the person continues to be a CDF recognised dependant under the Principal Determination as in force immediately before 1 July 2023, they will be considered accompanied or unaccompanied resident family of the member depending on the member’s categorisation under the Principal Determination as in force from 1 July 2023.

Clause 4 provides transitional and savings provisions in relation to people were a CDF recognised dependant as a consequence of being in a live-in carer of a member under subsection 1.3.85.3 of the Principal Determination before 1 July 2023. Subsection 1.3.85.3 of the Principal Determination as in force immediately before 1 July 2023 continues to apply to the person as a live-in carer a until they are assessed under the Principal Determination as in force on or after 1 July 2023. The person may also cease to be a CDF recognised dependant if they cease to satisfy the rules under which they were first recognised or on 30 June 2024. 

While the person continues to be a CDF recognised dependant under the Principal Determination as in force immediately before 1 July 2023, they will be considered accompanied resident family of the member under the Principal Determination as in force from 1 July 2023.

Clause 5 provides transitional in relation to people were a CDF recognised dependant under subsection 1.3.85.2 the Principal Determination before 1 July 2023 as a consequence of being child who lived with a member for less than 90 nights in a year. As of 1 July 2023, the child is the accompanied resident family of the member under the Principal Determination as in force immediately from 1 July 2023.

Clause 6 provides transitional in relation to people were a CDF recognised dependant under subsection 1.5.85.5 or 5A of the Principal Determination before 1 July 2023 as a consequence of being a non-cohabiting partner a member. As of 1 July 2023, the person is the unaccompanied resident family of the member under the Principal Determination as in force immediately from 1 July 2023.

Clause 7 provides transitional in relation to members who were categorised as a member with dependants under section 1.3.95 of the Principal Determination immediately before 1 July 2023.  As of 1 July 2023, the partner of the member and children of the member or their partner who were dependants before 1 July 2023 are accompanied resident family of the member.

Clause 8 provides transitional in relation to members who were categorised as a member with dependants (unaccompanied) under section 1.3.96 of the Principal Determination immediately before 1 July 2023.  As of 1 July 2023, the partner of the member and children of the member or their partner who were dependants before 1 July 2023 are unaccompanied resident family of the member.

Clause 9 provides a transitional provision in relation to a person who was a dependant with special needs under section 1.3.84 of the Principal Determination immediately before the 1 July 2023.  As of 1 July, the person has special needs under section 1.3.6 of the Principal Determination.

Clause 10 provides rules for a member who became ineligible to receive a benefit in relation to a person who was a dependant immediately before 1 July 2023 because they did not fall into the new categorisation framework. The rules allows a decision maker to apply a classification of accompanied resident family, unaccompanied resident family, or recognised other person based on the member’s categorisation before 1 July 2023. Decisions made under this section will cease to have effect of 30 July 2024.

Annex B

Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2023 (No. 5)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Overview of the Determination

The purpose of this Determination is to make miscellaneous and consequential amendments to the Principal Determination following the implementation of the employment offer modernisation amending determinations. This Determination also provides the transitional and savings provisions relating to the categorisation and location frameworks which take effect from 1 July 2023.

Assessment of compatibility

This Determination is compatible with human rights as it does not engage any of the applicable rights or freedoms due to its technical and administrative nature.

Conclusion

This Determination is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.